Department of Justice FOIA/PA Mail Referral Unit David M ... · Gorka Garcia-Malene Freedom of...

March 17, 2020

Department of Justice

FOIA/PA Mail Referral Unit

Room 115

LOC Building

Washington, DC 20530-0001

Federal Bureau of Investigation

David M. Hardy, Chief

Record/Information Dissemination Section

Records Management Division

170 Marcel Drive

Winchester, VA 22602-4843

National Institutes of Health

Gorka Garcia-Malene

Freedom of Information Officer

Building 31 Room 5B35

9000 Rockville Pike

Bethesda, MD 20892

National Science Foundation

Attn: FOIA Officer

2415 Eisenhower Avenue

Alexandria, Virginia 22314

Department of Energy

Alexander Morris, FOIA Officer, Mail Stop MA-46

FOIA Requester Service Center

1000 Independence Avenue, SW

Washington, DC 20585

Department of Commerce

Carrie Hyde-Michaels

Deputy Chief Freedom of Information Act Officer and Deputy Program Director of

Departmental FOIA/Privacy Act Operations

Office of Privacy and Open Government

14th and Constitution Avenue NW, Mail Stop 61025

Washington, DC 20230

1

Re: Request Under Freedom of Information Act

Expedited processing and fee waiver/limitation requested

To Whom It May Concern:

The American Civil Liberties Union and the American Civil Liberties Union

Foundation (together, the “ACLU”)1 and Asian Americans Advancing Justice |

AAJC (“Advancing Justice | AAJC”)2 submit this Freedom of Information Act

request for records pertaining to the government’s efforts to scrutinize,

investigate, prosecute, and take other measures against U.S.-based scientists and

researchers believed to have connections to China.

I. Background

Although international scientific collaboration is commonplace and a valuable

source of innovation for the United States, in the past several years, the U.S.

government has pushed universities and research institutions around the country

to closely scrutinize scientists who may have foreign ties—especially ties to China.3

As part of this campaign, the Federal Bureau of Investigation (“FBI”) has

coordinated with agencies like the National Institutes of Health (“NIH”) to pursue

investigations against scientists and researchers, many of whom are Chinese-

1 The American Civil Liberties Union Foundation is a 26 U.S.C. § 501(c)(3) organization

that provides legal representation free of charge to individuals and organizations in civil

rights and civil liberties cases, and educates the public about civil rights and civil liberties

issues across the country. The American Civil Liberties Union is a separate non-profit, 26

U.S.C. § 501(c)(4) membership organization that educates the public about the civil liberties

implications of pending and proposed state and federal legislation, provides analysis of

pending and proposed legislation, directly lobbies legislators, and mobilizes its members to

lobby their legislators.

2 Asian Americans Advancing Justice | AAJC is a national, non-partisan, not-for-profit

501(c)(3) organization that works through policy advocacy, education, and litigation to

advance the civil and human rights of Asian Americans and to build and promote a fair and

equitable society for all. Founded in 1991, Advancing Justice | AAJC is one of the nation’s

leading experts on civil rights issues of importance to the Asian American and Pacific

Islander (AAPI) community, including immigration and immigrants’ rights, census, hate

incidents, language access, technology and telecommunications, and voting rights.

3 See, e.g., Federal Bureau of Investigation (“FBI”), China: The Risk to Academia 1

(2019), available at https://www.fbi.gov/file-repository/china-risk-to-academia-

2019.pdf/view; Staff Report, S. Comm. on Homeland Sec. & Governmental Affairs, Threats

to the U.S. Research Enterprise: China’s Talent Recruitment Plans 5 (2019), available at

https://www.hsgac.senate.gov/imo/media/doc/2019-11-18%20PSI%20Staff%20Report%20-

%20China's%20Talent%20Recruitment%20Plans%20Updated.pdf.

2

Americans.4 National news outlets report that this heightened scrutiny has, in some

cases, caused Chinese-American scientists to lose their research funding or be fired

from research institutions. According to news reports, many of these adverse actions

are not based on a specific threat of espionage, but instead on scientists’ failing to

adequately disclose their international collaborations. Yet new disclosure rules,

inconsistent and potentially discriminatory enforcement, and shifting norms have

produced widespread confusion and concern among Chinese-American researchers.5

The FBI has spearheaded this scrutiny of scientists and researchers, as reflected by

FBI Director Christopher Wray’s many public remarks on the “China threat.” For

instance, during a hearing before the Senate Intelligence Committee in February

2018, Senator Marco Rubio asked Director Wray to expand on “the

counterintelligence risk posed to U.S. national security from Chinese students,

particularly those in advanced programs in the sciences and mathematics[.]”6

Director Wray responded:

[T]he use of nontraditional collectors, especially in the academic

setting, whether it’s professors, scientists, students, we see in

almost every field office that the FBI has around the

country. . . . So one of the things we’re trying to do is view the

China threat as not just a whole of government threat, but a

whole of society threat on their end. I think it’s going to take a

whole of society response by us.7

Relatedly, in November 2018, the Department of Justice (“DOJ”) announced the

4 Office of Inspector General, OEI-01-19-00160, U.S. Dep’t of Health and Human

Services, Vetting Peer Reviewers at NIH’s Center for Scientific Review: Strengths and

Limitations 15 (2019), available at https://oig.hhs.gov/oei/reports/oei-01-19-00160.pdf

(hereinafter “HHS OIG Report”).

5 See, e.g., Diana Kwon, US-China Tensions Leave Some Researchers on Edge, Scientist,

Jun. 7, 2019, https://www.the-scientist.com/news-opinion/how-tensions-between-the-us-and-

china-affect-scientists-65986; Peter Waldman, The U.S. Is Purging Chinese Cancer

Researchers From Top Institutions, Bloomberg Businessweek, June 13, 2019,

https://www.bloomberg.com/news/features/2019-06-13/the-u-s-is-purging-chinese-

americans-from-top-cancer-research; Jeffrey Mervis, NIH Probe of Foreign Ties Has Led to

Undisclosed Firings—And Refunds from Institutions, Science, June 26, 2019,

https://www.sciencemag.org/news/2019/06/nih-probe-foreign-ties-has-led-undisclosed-

firings-and-refunds-institutions (hereinafter “NIH Probe”).

6 Open Hearing on Worldwide Threats: Hearing Before the S. Select Comm. on

Intelligence, 115th Cong. 2 (2018), available at https://www.intelligence.senate.gov/

hearings/open-hearing-worldwide-threats-0#.

7 Id.

3

creation of a “China Initiative.”8 According to a DOJ “Fact Sheet,” one of the goals of

the China Initiative is to “[d]evelop an enforcement strategy concerning non-

traditional collectors (e.g., researchers in labs, universities, and the defense

industrial base) that are being coopted into transferring technology contrary to U.S.

interests[.]”9 In July 2019, the FBI released an advisory entitled “China: The Risk

to Academia,” in which it warned that certain “Chinese scholars may serve as

collectors—wittingly or unwittingly—of economic, scientific, and technological

intelligence from U.S. institutions to ultimately benefit Chinese academic

institutions and businesses.”10 The advisory goes on to assert that “foreign

adversaries have targeted” scholars with “divided loyalty to a country other than

the United States” in attempting to “gain access to [universities’] research and

development.”11

This broad suspicion is particularly troubling given that DOJ has, in recent years,

initiated multiple serious and highly damaging prosecutions against Chinese-

American scientists on what were later revealed to be faulty grounds.12

Nevertheless, the government has continued to cite the threat of espionage to

support a push for increased coordination between law enforcement agencies,

defense agencies, and agencies involved in scientific research and grant-making.

For instance, in September 2019, the Department of Health and Human Services

(“HHS”) issued a report finding that one its subsidiary agencies, the NIH,“ha[d] not

8 Office of Public Affairs, Attorney General Jeff Sessions Announces New Initiative to

Combat Chinese Economic Espionage (Nov. 1, 2018), available at https://www.justice.gov/

opa/speech/attorney-general-jeff-sessions-announces-new-initiative-combat-chinese-

economic-espionage.

9 DOJ, Department of Justice China Initiative Fact Sheet, available at

https://www.justice.gov/opa/page/file/1122686/download.

10 FBI, China: The Risk to Academia 2 (2019).

11 Id. at 9.

12 See, e.g., Gina Kolata, Vast Dragnet Targets Theft of Biomedical Secrets for China,

N.Y. Times, Nov. 4, 2019, https://nyti.ms/2pDupLp (reporting that “the Justice Department

has been forced to drop theft charges against at least four Chinese-American scientists

since 2014”); Chris Fuchs, Scientist Formerly Accused of Spying Sues Alleging FBI Agent

Falsified Evidence, NBC News, May 11, 2017, https://www.nbcnews.com/news/asian-

america/scientist-formerly-accused-spying-sues-alleging-fbi-agent-falsified-evidence-

n757826; Nicole Perloth, Cleared of Spying for China, She Still Doesn’t Have Her Job Back,

N.Y. Times, May 17, 2018, https://nyti.ms/2k82z3J; Kristine Guerra, Feds Dismiss Charges

Against Former Eli Lilly Scientists Accused of Stealing Trade Secrets, IndyStar, Dec. 5,

2014, http://indy.st/1CNNk5k; cf. Andrew Chongseh Kim, Prosecuting Chinese “Spies”: An

Empirical Analysis of the Economic Espionage Act, 40 Cardozo L. Rev. 749, 753–54 (2018)

(analyzing “a random sample of cases charged under the Economic Espionage Act (EEA)

from 1997 to 2015” and finding that “21% of Chinese and 22% of all Asian defendants

charged under the EEA are never proven guilty of espionage or any other serious crime”).

4

addressed . . . concerns about foreign threats to the integrity of the peer review

process.”13 In response, NIH stated that it was already “working closely with federal

partners,” including, among others, the Department of Defense and the FBI, “to

update [its] peer review vetting guidelines.”14 NIH went on to confirm that it was

working with “federal experts,” including the HHS Office of National Security, “to

help develop a systematic, risk-based, data-driven approach to identifying peer

review nominees who warrant additional scrutiny.”15

News reports indicate that the government’s intensifying focus on scientists with

ties to China has adversely affected individuals pursuing research in both private

industry and academia. For example, according to a recent story published by

Bloomberg Businessweek, “[t]he FBI is telling companies, universities, hospitals—

anyone with intellectual property at stake—to take special precautions when

dealing with Chinese business partners and employees who might be what [the

director of the FBI] calls ‘nontraditional’ information collectors.”16 Along the same

lines, “[v]isas for Chinese students and researchers are being curtailed, and more

Chinese engineers and businesspeople, especially in the tech sector, are being

detained at U.S. airports while border agents inspect and image their digital

devices.”17

The public record contains little information about how federal law enforcement and

scientific agencies decide whom to scrutinize, investigate, or prosecute, and on what

basis. For at least two reasons, the public has a strong interest in knowing more.

First, the government’s efforts in this area may significantly affect the United

States’ leadership role in scientific and technological innovation. Second,

government measures that single out scientific professionals or students for adverse

treatment based on their race or national origin violate the law.

13 HHS OIG Report, supra note 4, at 15.

14 Id. at 19.

15 Id.; see also Jeffrey Mervis, NSF Hopes Jason Can Lead It Through Treacherous

Waters, Science, March 18, 2019, https://www.sciencemag.org/news/2019/03/nsf-hopes-

jason-can-lead-it-through-treacherous-waters (hereinafter “NSF Hopes”) (reporting on

National Science Foundation’s efforts to “examine how foreign influences may be warping

the U.S. research enterprise”); Bill Priestap, Statement Before the S. Judiciary Comm.,

Subcomm. on Border Sec. & Immigration, Student Visa Integrity: Protecting Educational

Opportunity and National Security (June 6, 2018), available at https://www.fbi.gov/

news/testimony/student-visa-integrity-protecting-educational-opportunity-and-national-

security (“[T]he more willing these schools are to engage with U.S. law enforcement as

issues arise and suspicious circumstances become noticed, the more likely it is that the FBI

and its partners can help to mitigate risk or minimize damage posed to these schools.”).

16 Waldman, The U.S. Is Purging Chinese Cancer Researchers From Top Institutions,

supra note 5.

17 Id.

5

Accordingly, through this FOIA request, the ACLU and Advancing Justice | AAJC

seek information about the government’s efforts to scrutinize, investigate,

prosecute, and otherwise take measures against scientists who are believed to have

connections to China and other nations.

II. Requested Records

Unless otherwise stated below, the ACLU and Advancing Justice | AAJC

request the following records created on or after January 1, 2017 :

A. Department of Justice and Federal Bureau of Investigation

From DOJ and the FBI, requestors seek:

1. Formal or informal guidance, training materials, briefing materials,

advisories, or presentations related to China or talent programs that

were provided to educational institutions, scientific research institutions,

or government agencies that conduct or fund scientific research.

2. Correspondence related to China, talent programs, peer review, or

conflicts of interest with educational institutions, scientific research

institutions, or government agencies that conduct or fund scientific

research, including but not limited to:

a. lists of suspected talent program members;18

b. FBI or other government agency requests for information or

investigations; and

c. requests for access to individual employees’ communications.

3. Memoranda, briefing materials, policies, formal or informal guidance,

training materials, advisories, or presentations concerning:

a. China and scientific research institutions, educational institutions,

grant funding, or peer review;

b. talent programs;

c. conflicts of interest or undisclosed sources of funding related to

scientific research; or

d. the Department of Justice’s China Initiative. including but not

limited to its purpose, scope, progress, status, or effectiveness.

18 See Staff Report, Threats to the U.S. Research Enterprise, supra note 3, at 98.

6

4. Records containing statistics about the number of assessments,

investigations, or prosecutions related to China, or any subset of

investigations or prosecutions related to China.19

5. Records containing statistics about assessments, investigations, or

prosecutions of scientists, researchers, or technologists.

6. Criminal complaints or indictments related to China and economic

espionage, fraud, trade secrets, false statements, or talent programs.

7. Records contained in the FBI production to the Senate Subcommittee on

Investigations dated October 12, 2018.

8. The FBI PowerPoint presentation titled, “Talent Plan Education Package

Briefing.”20

B. National Institutes of Health

From the NIH, requestors seek:

1. Records containing statistics related to scientists identified, “flagged,” or

investigated for their purported foreign ties, including but not limited to

statistics referencing China or the national origin, ethnicity, or race of

the individuals.21

2. Records containing statistics related to the revocation or reduction of NIH

funding to individuals or institutions, and that reference China or the

national origin, ethnicity, or race of individual funding recipients.

3. Records containing statistics related to investigations or adverse action

19 See, e.g., Mark Hosenball and David Brunnstrom, To Counter Huawei, U.S. Could

Take ‘Controlling Stake’ in Ericsson, Nokia: Attorney General, Reuters, Feb. 6, 2020,

https://reut.rs/31yMw3u (reporting that FBI Director Christopher Wray informed

conference attendees at the Center for Strategic and International Studies that “the bureau

ha[s] about 1,000 open investigations of Chinese technology theft across its 56 regional

offices” and “span[ning] just about every industry sector”); The Latest: FBI Chief Wray Says

China Poses a Serious Threat, U.S. News, July 23, 2019, https://www.usnews.com/

news/politics/articles/2019-07-23/the-latest-fbi-chief-wray-says-china-poses-a-serious-threat

(reporting that “Wray told the Senate Judiciary Committee” that “the FBI has more than

1,000 investigations involving economic espionage and attempted intellectual property

theft,” and that “nearly all lead back to China”).

20 Staff Report, Threats to the U.S. Research Enterprise, supra note 3, at 93.

21 See, e.g., Jeffrey Mervis, NIH Reveals its Formula for Tracking Foreign Influences,

Science, Sep. 27, 2019, https://www.sciencemag.org/news/2019/09/nih-reveals-its-formula-

tracking-foreign-influences (hereinafter “NIH Reveals”).

7

by NIH (or other U.S. agencies or institutions) against peer reviewers of

grant proposals, and that reference China or the national origin,

ethnicity, or race of the reviewers.

4. Records containing statistics related to cases referred to HHS for

investigation or potential debarment, and that reference China or the

national origin, ethnicity, or race of the individuals referred to HHS.

5. Records containing statistics related to adverse employment actions by

NIH and that reference China or the national origin, ethnicity, or race of

the individuals affected.

6. Records concerning the firing, resignation, or retirement of employees by

U.S. institutions receiving NIH funding, or adverse action against

employees by those institutions, in connection with alleged violations of

NIH rules.

7. Formal or informal investigative summaries or correspondence

concerning “at least 75 individuals potentially linked to foreign talent

recruitment plans” who “also served as peer reviewers within the last two

years.”22

8. Policies, memoranda, formal or informal guidance, training materials,

briefing materials, advisories, or presentations concerning the Thousand

Talents program or other foreign talent programs.

9. Formal or informal guidance, training documents, or policies provided to

Scientific Review Officers for vetting peer reviewers.

10. Records identifying possible “risk factors” for vetting scientists, including

but not limited to records incorporating input from HHS’s Office of

National Security.23

11. Reports that NIH received in 2016 from the HHS Office of Inspector

General concerning an FBI probe into an MD Anderson scientist, who

was allegedly sharing grant proposals that he had been asked to review.24


23 See HHS OIG Report, supra note 4, at 16 (recommending that NIH “leverage the

expertise” of HHS’s Office of National Security to develop a “risk-based” approach to

vetting); Mervis, NIH Reveals, supra note 21.

24 Mervis, NIH Probe, supra note 5.

8

C. National Science Foundation

From the National Science Foundation (“NSF”), requestors seek:


investigated for their foreign ties, including but not limited to statistics

referencing China or the national origin, ethnicity, or race of the

individuals.

2. Reports, policies, memoranda, formal or informal guidance, training

materials, briefing materials, advisories, or presentations concerning

both China and the scientific advisory group known as “Jason.”25

3. Briefing materials or presentations concerning China and presented by

Dr. Rebecca Keiser, head of NSF’s international office, to individuals at

U.S. universities.26

4. Memoranda, formal or informal guidance, training materials, briefing

materials, advisories, or presentations concerning the April 2018 decision

to restrict the “pool of rotators . . . to scientists who are U.S. citizens or

who have applied for citizenship,” and that reference China or foreign

talent programs.27


materials, advisories, or presentations concerning both China and the

2019 “issu[ance of] a policy making it clear that NSF personnel and IPAs

detailed to NSF cannot participate in foreign government talent

recruitment programs.”28

6. Records containing statistics related to any adverse action by NSF or

other U.S. institutions against scientists, including the revocation of

funding to individuals or institutions, and that reference China or the

national origin, ethnicity, or race of the individuals affected.


NSF and that reference China or the national origin, ethnicity, or race of

the individuals affected.

25 See Mervis, NSF Hopes, supra note 15.

26 See id.

27 See id.

28 See Letter from France Córdova, Director, NSF, Dear Colleague Letter: Research

Protection, National Science Foundation (July 11, 2019), https://www.nsf.gov/pubs/2019/

nsf19200/research_protection.jsp; see also Staff Report, Threats to the U.S. Research

Enterprise, supra note 3, at 45.

9

D. Department of Energy

From the Department of Energy, requestors seek:


investigated for their foreign ties, including but not limited to statistics

referencing China or the national origin, ethnicity, or race of the

individuals.

2. Records containing statistics related to any adverse action by the

Department of Energy or other U.S. institutions against scientists,

including the revocation of funding to individuals or institutions, and that

reference China or the national origin, ethnicity, or race of individual

funding recipients.

3. The most recent version of the “S&T Risk Matrix.”29


materials, advisories, or presentations concerning the 2019 decision to

limit the ability of Department of Energy personnel, grantees, and others

to participate in foreign talent programs.30


Department of Energy and that reference China or the national origin,

ethnicity, or race of the individuals affected.

E. Department of Commerce

From the Department of Commerce, requestors seek:

1. Complaints concerning scrutiny or targeting of individuals based on

Asian or Chinese ancestry, including complaints submitted to the

Inspector General office.

2. Reports concerning scrutiny or targeting of individuals based on Asian or

Chinese ancestry.

3. Records concerning talent programs.


30 Memorandum from Dan Brouillette, Deputy Secretary of Energy, to Heads of

Departmental Elements, Department of Energy Policy on Foreign Government Talent

Recruitment Programs (Jan. 31, 2019), available at https://www.aip.org/sites/default/

files/aipcorp/images/fyi/pdf/DOE-memo-on-foreign-goverment-talent-recruitment-

programs.pdf.

10

* * *

With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), the ACLU and

Advancing Justice | AAJC request that responsive electronic records be provided

electronically in their native file format, if possible. Alternatively, the ACLU and

Advancing Justice | AAJC request that the records be provided electronically in a

text-searchable, static-image format (PDF), in the best image quality in the agency’s

possession, and that the records be provided in separate, Bates-stamped files.

III. Application for Expedited Processing

The ACLU and Advancing Justice | AAJC request expedited processing pursuant to

5 U.S.C. § 552(a)(6)(E).31 There is a “compelling need” for these records, as defined

in the statute, because the information requested is “urgen[tly]” needed by an

organization primarily engaged in disseminating information “to inform the public

concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552

(a)(6)(E)(v)(II). The ACLU and Advancing Justice | AAJC are non-profit public

interest groups primarily engaged in disseminating information about actual and

alleged government activity, and the information is urgently needed to better

understand federal agency actions against scientists believed to have connections to

China and other nations.

A. The ACLU and Advancing Justice | AAJC are organizations primarily

engaged in disseminating information in order to inform the public

about actual or alleged government activity.

The ACLU and Advancing Justice | AAJC are “primarily engaged in disseminating

information” within the meaning of the statute. See id.32 Obtaining information

about government activity, analyzing that information, and widely publishing and

disseminating it to the press and public are critical and substantial components of

requestors’ work and are among their primary activities. See ACLU v. Dep’t of

Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest

group that “gathers information of potential interest to a segment of the public, uses

its editorial skills to turn the raw material into a distinct work, and distributes that

work to an audience” to be “primarily engaged in disseminating information”).33 The

31 See also 28 C.F.R. § 16.5(e) (DOJ, FBI); 45 C.F.R. § 5.27 (HHS); 45 C.F.R. § (612.5)(e)

(NSF); 10 C.F.R. 1004.5(d)(6) (Dep’t of Energy); 15 C.F.R. 4.6(f) (Dep’t of Commerce).

32 See also 28 C.F.R. § 16.5(e)(1)(ii) (DOJ, FBI); 45 C.F.R. 5.27(b)(2) (HHS); 45 C.F.R.

612.5(e)(2)(i)(B) (NSF); 10 C.F.R. 1004.5(d)(6) (Dep’t of Energy); 15 C.F.R. 4.6(f)(1)(iv) (Dep’t

of Commerce).

33 Courts have found that the ACLU as well as other organizations with similar missions

that engage in information-dissemination activities similar to the ACLU are “primarily

engaged in disseminating information.” See, e.g., Leadership Conference on Civil Rights v.

11

ACLU and Advancing Justice | AAJC regularly disseminate information.

The ACLU publishes STAND, a print magazine that reports on and analyzes civil

liberties-related current events. The magazine is disseminated to over 850,000

people. The ACLU also publishes regular updates and alerts via email to over 3.9

million subscribers (both ACLU members and non-members). These updates are

additionally broadcast to 4.8 million social media followers. The magazine as well as

the email and social-media alerts often include descriptions and analysis of

information obtained through FOIA requests.

The ACLU also regularly issues press releases to call attention to documents

obtained through FOIA requests, as well as other breaking news,34 and ACLU

attorneys are interviewed frequently for news stories about documents released

through ACLU FOIA requests.35

Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005); ACLU, 321 F. Supp. 2d at 29 n.5; Elec.

Privacy Info. Ctr. v. DOD, 241 F. Supp. 2d 5, 11 (D.D.C. 2003).

34 See, e.g., Press Release, ACLU, Federal Court Permanently Blocks Billions of Dollars

in Border Wall Construction (June 28, 2019), https://www.aclu.org/press-releases/federal-

court-permanently-blocks-billions-dollars-border-wall-construction; Press Release, ACLU,

New Documents Reveal NSA Improperly Collected Americans’ Call Records Yet Again

(June 26, 2019), https://www.aclu.org/press-releases/new-documents-reveal-nsa-improperly-

collected-americans-call-records-yet-again; Press Release, ACLU, ACLU and Center for

Media Justice Sue FBI for Records on Surveillance of Black Activists (Mar. 21, 2019),

https://www.aclu.org/press-releases/aclu-and-center-media-justice-sue-fbi-records-

surveillance-black-activists; Press Release, ACLU, New Documents Reveal Government

Plans to Spy on Keystone XL Protesters (Sept. 4, 2018), https://www.aclu.org/news/new-

documents-reveal-government-plans-spy-keystone-xl-protesters; Press Release, ACLU,

ACLU Obtains Documents Showing Widespread Abuse of Child Immigrants in U.S.

Custody (May 22, 2018), https://www.aclu.org/news/aclu-obtains-documents-showing-

widespread-abuse-child-immigrants-us-custody; Press Release, ACLU, U.S. Releases Drone

Strike ‘Playbook’ in Response to ACLU Lawsuit (Aug. 6, 2016),

https://www.aclu.org/news/us-releases-drone-strike-playbook-response-aclu-lawsuit; Press

Release, ACLU, Secret Documents Describe Graphic Abuse and Admit Mistakes (June 14,

2016), https://www.aclu.org/news/cia-releases-dozens-torture-documents-response-aclu-

lawsuit; Press Release, ACLU, ACLU Sues for Bureau of Prisons Documents on Approval of

CIA Torture Site (Apr. 14 2016), https://www.aclu.org/news/aclu-sues-bureau-prisons-

documents-approval-cia-torture-site.

35 See, e.g., Charlie Savage, N.S.A. Gathered Domestic Calling Records It Had No

Authority to Collect, N.Y. Times, June 26, 2019, https://nyti.ms/2Lnp0Aw (quoting ACLU

attorney Patrick Toomey); Rachel Frazin, ACLU Sues FBI Over Black Activist Surveillance

Records, Hill, Mar. 21, 2019, https://thehill.com/policy/national-security/fbi/435143-fbi-sued-

over-black-activist-surveillance-records (quoting ACLU attorney Nusrat Choudhury); Cora

Currier, TSA’s Own Files Show Doubtful Science Behind Its Behavioral Screen Program,

Intercept, Feb. 8, 2017, https://theintercept.com/2017/02/08/tsas-own-files-show-doubtful-

science-behind-its-behavior-screening-program (quoting ACLU attorney Hugh Handeyside);

12

The ACLU publishes reports about government conduct and civil liberties issues

based on its analysis of information derived from various sources, including

information obtained from the government through FOIA requests. This material is

broadly circulated to the public and widely available to everyone for no cost or,

sometimes, for a small fee. ACLU national projects regularly publish and

disseminate reports that include a description and analysis of government

documents obtained through FOIA requests.36 The ACLU also regularly publishes

books, “know your rights” materials, fact sheets, and educational brochures and

pamphlets designed to educate the public about civil liberties issues and

government policies that implicate civil rights and liberties.

The ACLU publishes a widely read blog where original editorial content reporting

on and analyzing civil rights and civil liberties news is posted daily. See

https://www.aclu.org/blog. The ACLU creates and disseminates original editorial

and educational content on civil rights and civil liberties news through multimedia

Larry Neumeister, Judge Scolds Government over Iraq Detainee Abuse Pictures, The

Associated Press, Jan. 18, 2017, https://www.apnews.com/865c32eebf4d457499c017eb

837b34dc (quoting ACLU project director Hina Shamsi); Karen DeYoung, Newly

Declassified Document Sheds Light on How President Approves Drone Strikes, Wash. Post,

Aug. 6, 2016, http://wapo.st/2jy62cW (quoting former ACLU deputy legal director Jameel

Jaffer); Catherine Thorbecke, What Newly Released CIA Documents Reveal About ‘Torture’

in Its Former Detention Program, ABC, June 15, 2016, http://abcn.ws/2jy40d3 (quoting

ACLU attorney Dror Ladin); Nicky Woolf, US Marshals Spent $10M on Equipment for

Warrantless Stingray Device, Guardian, Mar. 17, 2016, https://www.theguardian.com/

world/2016/mar/17/us-marshals-stingray-surveillance-airborne (quoting ACLU attorney

Nathan Freed Wessler); David Welna, Government Suspected of Wanting CIA Torture

Report to Remain Secret, NPR, Dec. 9, 2015, http://n.pr/2jy2p71 (quoting ACLU project

director Hina Shamsi).

36 See, e.g., ACLU, Bad Trip: Debunking the TSA’s ‘Behavior Detection’ Program (2017),

https://www.aclu.org/sites/default/files/field_document/dem17-tsa_detection_report-v02.pdf;

Carl Takei, ACLU-Obtained Emails Prove that the Federal Bureau of Prisons Covered Up

Its Visit to the CIA’s Torture Site (Nov. 22, 2016), https://www.aclu.org/blog/speak-

freely/aclu-obtained-emails-prove-federal-bureau-prisons-covered-its-visit-cias-torture;

Brett Max Kaufman, Details Abound in Drone ‘Playbook’ – Except for the Ones That Really

Matter Most (Aug. 8, 2016), https://www.aclu.org/ blog/speak-freely/details-abound-drone-

playbook-except-ones-really-matter-most; ACLU, Leaving Girls Behind: An Analysis of

Washington D.C.’s “Empowering Males of Color” Initiative (2016), https://www.aclu.org/

report/leaving-girls-behind; Nathan Freed Wessler, ACLU-Obtained Documents Reveal

Breadth of Secretive Stingray Use in Florida (Feb. 22, 2015), https://www.aclu.org/blog/free-

future/aclu-obtained-documents-reveal-breadth-secretive-stingray-use-florida; Nathan

Freed Wessler, FBI Documents Reveal New Information on Baltimore Surveillance Flights

(Oct. 30, 2015), https://www.aclu.org/blog/free-future/fbi-documents-reveal-new-

information-baltimore-surveillance-flights; Ashley Gorski, New NSA Documents Shine More

Light into Black Box of Executive Order 12333 (Oct. 30, 2014), https://www.aclu.org/

blog/new-nsa-documents-shine-more-light-black-box-executive-order-12333.

13

projects, including videos, podcasts, and interactive features. See

https://www.aclu.org/multimedia. The ACLU also publishes, analyzes, and

disseminates information through its heavily visited website, www.aclu.org. The

website addresses civil rights and civil liberties issues in depth, provides features

on civil rights and civil liberties issues in the news, and contains many thousands of

documents relating to the issues on which the ACLU is focused. The ACLU’s

website also serves as a clearinghouse for news about ACLU cases, including

analysis about case developments and an archive of case-related documents.

Through these pages, and with respect to each specific civil liberties issue, the

ACLU provides the public with educational material, recent news, analyses of

relevant congressional or executive branch action, government documents obtained

through FOIA requests, and further in-depth analytic and educational multimedia

features.37

The ACLU website includes many features on information obtained through the

FOIA. The ACLU maintains an online “Torture Database,” a compilation of over

100,000 pages of FOIA documents that allows researchers and the public to conduct

sophisticated searches of its contents relating to government policies on rendition,

detention, and interrogation.38 The ACLU has also published a number of charts

37 See, e.g., ACLU v. ODNI—FOIA Lawsuit Seeking Records About Government

Surveillance Under the USA Freedom Act, ACLU Case Page, https://www.aclu.org/

cases/aclu-v-odni-foia-lawsuit-seeking-records-about-government-surveillance-under-usa-

freedom-act; ACLU v. DOJ—FOIA Lawsuit Seeking Information on Federal Agencies’

Surveillance of Social Media, ACLU Case Page, https://www.aclu.org/cases/aclu-v-doj-foia-

lawsuit-seeking-information-federal-agencies-surveillance-social-media; ACLU v. DOJ—

FOIA Case for Records Relating to Targeted Killing Law, Policy, and Casualties, ACLU

Case Page, https://www.aclu.org/cases/aclu-v-doj-foia-case-records-relating-targeted-killing-

law-policy-and-casualties; Executive Order 12,333—FOIA Lawsuit, ACLU Case Page,

https://www.aclu.org/cases/executive-order-12333-foia-lawsuit; ACLU Motions Requesting

Public Access to FISA Court Rulings on Government Surveillance, ACLU Case Page,

https://www.aclu.org/cases/aclu-motions-requesting-public-access-fisa-court-rulings-

government-surveillance; ACLU v. DOJ—FOIA Lawsuit Demanding OLC Opinion

“Common Commercial Service Agreements, ACLU Case Page, https://www.aclu.org/cases/

aclu-v-doj-foia-lawsuit-demanding-olc-opinion-common-commercial-service-agreements;

FOIA Request for Justice Department Policy Memos on GPS Location Tracking, ACLU

Case Page, https://www.aclu.org/cases/foia-request-justice-department-policy-memos-gps-

location-tracking; Florida Stingray FOIA, ACLU Case Page, https://www.aclu.org/

cases/florida-stingray-foia; Nathan Freed Wessler, ACLU-Obtained Documents Reveal

Breadth of Secretive Stingray Use in Florida, (Feb. 22, 2015), https://www.aclu.org/blog/

free-future/aclu-obtained-documents-reveal-breadth-secretive-stingray-use-florida.

38 The Torture Database, ACLU Database, https://www.thetorturedatabase.org; see also

Countering Violent Extremism FOIA Database, ACLU Database, https://www.aclu.org/foia-

collection/cve-foia-documents; TSA Behavior Detection FOIA Database, ACLU Database,

https://www.aclu.org/foia-collection/tsa-behavior-detection-foia-database; Targeted Killing

14

and explanatory materials that collect, summarize, and analyze information it has

obtained through the FOIA.39

Similarly, Advancing Justice | AAJC regularly releases and disseminates reports40,

press statements41, comments42, fact sheets43, “know your rights”44 information, and

other materials that educate the public45 on government policies and actions that

impact Asian Americans and other vulnerable communities. Advancing Justice |

AAJC frequently publishes blogs on Medium46 and a range of news publications47,

such as The Hill48 and NBC49, on various issues impacting AAPIs, and regularly

FOIA Database, ACLU Database, https://www.aclu.org/foia-collection/targeted-killing-foia-

database.

39 Index of Bush-Era OLC Memoranda Relating to Interrogation, Detention, Rendition

and/or Surveillance, ACLU (Mar. 5, 2009), https://www.aclu.org/sites/default/files/

field_document/olcmemos_chart.pdf; Summary of FISA Amendments Act FOIA Documents

Released on November 29, 2010, ACLU (Nov. 29, 2010), https://www.aclu.org/files/pdfs/

natsec/faafoia20101129/20101129Summary.pdf; Statistics on NSL’s Produced by

Department of Defense, ACLU, https://www.aclu.org/sites/default/files/field_document/

nsl_stats.pdf.

40 See, e.g., Inside the Numbers: How Immigration Shapes Asian American and Pacific

Islander Communities, AAJC (Jun. 12, 2019), https://www.advancingjustice-

aajc.org/publication/inside-numbers-how-immigration-shapes-asian-american-and-pacific-

islander-communities.

41 Newsroom: Press Releases, AAJC, https://www.advancingjustice-aajc.org/index.php/news-

media/press-releases (last visited Mar. 3, 2020).

42 Expertise, AAJC, https://www.advancingjustice-aajc.org/expertise (last visited Mar. 3,

2020).

43 See, e.g., Factsheet: Why the Census Matters for Asian American, Native Hawaiian, and

Pacific Islander Communities, AAJC (Feb. 28, 2019), https://www.advancingjustice-

aajc.org/publication/factsheet-why-census-matters-asian-american-native-hawaiian-and-pacific-

islander.

44 Know Your Rights, AAJC, https://www.advancingjustice-aajc.org/know-your-rights (last

visited Mar. 3, 2020).

45 See, e.g., Newsroom: Justice in Brief Newsletters, AAJC, https://www.advancingjustice-

aajc.org/index.php/justice-brief-newsletters (last visited Mar. 3, 2020).

46 Advancing Justice | AAJC Blog, Medium, https://medium.com/advancing-justice-aajc (last


47 See, e.g., National Civil Rights Groups Launch 2020 Census Hotlines, SFGate, Feb. 11,

2020, https://www.sfgate.com/business/press-releases/article/National-Civil-Rights-Groups-

Launch-2020-Census-15047989.php.

48 See, e.g., Emily Birnbaum, Dems Put Spotlight on Diversity in Tech, Hill, Mar. 6, 2019,

https://thehill.com/policy/technology/432765-dems-put-spotlight-on-diversity-in-tech.

15

provides information on their website. On matters concerning Asian American

issues, Advancing Justice | AAJC staff are often interviewed for news articles50,

and provide testimonies51 in public hearings. Through its various outreach52 and

educational efforts53, Advancing Justice | AAJC is able to reach thousands of

individuals, including their 14,436 Twitter54 followers and 10,893 Facebook55

followers.

The ACLU and Advancing Justice | AAJC plan to analyze, publish, and

disseminate to the public the information gathered through this Request. The

records requested are not sought for commercial use and the Requesters plan to

disseminate the information disclosed as a result of this Request to the public at no

cost.

A. The records sought are urgently needed to inform the public about

actual or alleged government activity.

These records are urgently needed to inform the public about actual or alleged

government activity. See 5 U.S.C. § 552(a)(6)(E)(v)(II).56 Specifically, they pertain to

the government’s ongoing efforts to scrutinize, investigate, prosecute, and take

other measures against U.S.-based scientists and researchers perceived to have

foreign connections. As noted in Part I, supra, these efforts are the subject of

considerable public controversy. For example, writing in the Washington Post, the

President of Columbia University rejected “the notion that university personnel—

49 See, e.g., Julian Shen-Berro & Kimmy Yam, As Coronavirus Spreads, So Does Concern

Over Xenophobia, NBC News, Jan. 29, 2020, https://www.nbcnews.com/news/asian-

america/coronavirus-spreads-so-does-concern-over-xenophobia-n1125441.

50 See, e.g., Marian Liu, The Coronavirus and the Long History of Using Diseases to Justify

Xenophobia, Wash. Post, Feb. 14, 2020, https://wapo.st/2VGemtV.

51 See, e.g., Testimony on “Securing the U.S. Research Enterprise From China’s Talent

Recruitment Plans,” AAJC (Dec. 5, 2019), https://advancingjustice-

aajc.org/publication/testimony-securing-us-research-enterprise-chinas-talent-recruitment-plans.

52 See, e.g., Get Involved: Community Partners, AAJC, https://www.advancingjustice-

aajc.org/index.php/community-partners (last visited Mar. 3, 2020).

53 See, e.g., Get Involved: Youth Leadership Summit, AAJC, https://www.advancingjustice-

aajc.org/youth-leadership-summit (last visited Mar. 3, 2020).

54 Advancing Justice | AAJC (@AAAJ_AAJC), Twitter, https://twitter.com/aaaj_aajc (last


55 Asian Americans Advancing Justice – AAJC (@advancingjusticeaajc), Facebook,

https://www.facebook.com/advancingjusticeaajc (last visited Mar. 3, 2020).

56 See also 28 C.F.R. § 16.5(e)(1)(ii) (DOJ, FBI); 45 C.F.R. § 5.27(b)(2) (HHS); 45 C.F.R. §

612.5(e)(2)(i)(B) (NSF); 10 C.F.R. § 1004.5(d)(6) (Dep’t of Energy); 15 C.F.R. §§ 4.6(f)(1)(iv),

(f)(3) (Dep’t of Commerce).

16

and perhaps students themselves—should be asked to monitor the movements of

foreign-born students and colleagues,” calling it “antithetical to who we are.”57 In a

public letter, the President of the Massachusetts Institute of Technology stated that

subjecting “faculty members, post-docs, research staff and students” to heightened

scrutiny “because of their Chinese ethnicity alone” is “corrosive” to the Institute’s

“collaborative strength and open-hearted ideals.”58 And in response to remarks by

Senator Marco Rubio and FBI Director Christopher Wray, see supra Part I,

Congresswoman Judy Chu observed that “the growing perception that simply being

of Asian ancestry or having ties to China makes you prone to espionage has created

a culture of fear that has negatively impacted the Asian American community.”59

Thus, the records sought relate to a matter of widespread and exceptional public

interest.

The need for these records is especially urgent because the government’s scrutiny of

scientists and researchers appears to be intensifying. Reuters reported that during a

February 6, 2020 conference at the Center for Strategic and International Studies,

John Brown, the FBI’s assistant director of counterintelligence, informed attendees

that the bureau “had arrested 24 people last year in China-related cases and

another 19 already in 2020.”60 The week before, on January 28, the FBI arrested a

prominent Harvard researcher for allegedly failing to disclose sources of Chinese

funding; the New York Times reported that the arrest “signaled a new, aggressive

phase in the Justice Department’s campaign to root out scientists who are stealing

research from American laboratories.”61 A month before that, in December 2019, the

FBI announced a $5.5 million settlement with the Van Andel Research Institute,

resolving allegations that the Institute had “failed to disclose Chinese government

grants that funded” two of its researchers.62 And a month before that, in November

57 Lee C. Bollinger, No, I Won’t Start Spying On My Foreign-Born Students, Aug. 30,

2019, https://wapo.st/2SKTksp; see also Editorial, Diversity and International Collaboration

Should Not Become Casualties of Anti-Espionage Policies, Nature, July 16, 2019,

https://www.nature.com/articles/d41586-019-02180-9.

58 L. Rafael Raif, Letter to the MIT Community: Immigration Is a Kind of Oxygen, MIT

News Office (June 25, 2019), http://news.mit.edu/2019/letter-community-immigration-is-

oxygen-0625#.

59 CAPAC Members on Rubio and Wray’s Remarks Singling Out Chinese Students as

National Security Threats, Congressional Asian Pacific American Caucus (Feb. 15, 2018),

available at https://capac-chu.house.gov/press-release/capac-members-rubio-and-

wray%E2%80%99s-remarks-singling-out-chinese-students-national-security.

60 Hosenball and Brunnstrom, supra note 19.

61 Ellen Barry, U.S. Accuses Harvard Scientist of Concealing Chinese Funding, New York

Times, Jan. 28, 2020, https://nyti.ms/38FHqVA; see also Hosenball and Brunnstrom, supra

note 19.

62 Press Release, U.S. Attorney’s Office, W.D. Mich., Department of Justice Reaches $5.5

Million Settlement With Van Andel Research Institute to Resolve Allegations of

17

2019, the Senate Permanent Subcommittee on Investigations released a 105-page

report in which it stated, among other things, that “[f]ederal law enforcement and

other relevant agencies should identify U.S.-based entities that serve as

recruitment networks, platforms, or foreign government proxies that facilitate or

broker in state-sponsored talent recruitment.”63 Also in November 2019, the New

York Times reported that “[s]eventy-one institutions, including many of the most

prestigious medical schools in the United States, are now investigating 180

individual cases involving potential theft of intellectual property.”64 “The cases,”

according to the Times, “began after the N.I.H., prompted by information provided

by the F.B.I., sent 18,000 letters last year urging administrators who oversee

government grants to be vigilant.”65

The urgent need to inform the public about the government’s efforts in this area is

underscored by the significant media interest in what few aspects of those efforts

have been revealed to date.66 Given this media interest and lack of public

information, there is a critical need to inform the public about the government’s

widening efforts to scrutinize scientists and researchers. The requested records

should be released now, before the government’s scrutiny of scientists and

researchers further intensifies, to allow informed public debate while it may still

have an impact. Expedited processing is therefore appropriate under 5 U.S.C.

§ 552(a)(6)(E) and the relevant implementing regulations.67

II. Application for Waiver or Limitation of Fees

The ACLU and Advancing Justice | AAJC request a waiver of document search,

review, and duplication fees on the grounds that disclosure of the requested records

is in the public interest and because disclosure is “likely to contribute significantly

to public understanding of the operations or activities of the government and is not

primarily in the commercial interest of the requester[s].” 5 U.S.C.

Undisclosed Chinese Grants to Two Researchers (Dec. 19, 2019), available at

https://www.justice.gov/usao-wdmi/pr/2019_1219_VARI.


64 Gina Kolata, Vast Dragnet Targets Thefts of Biomedical Secrets for China, N.Y. Times,

Nov. 4, 2019, https://nyti.ms/2pDupLp.

65 Id.

66 See, e.g., supra notes 45, 48; see also Mara Hvistendahl, The FBI’s China Obsession,

Intercept, Feb. 2, 2020, https://theintercept.com/2020/02/02/fbi-chinese-scientists-

surveillance; Eric Tucker, US Researchers on Front Line of Battle Against Chinese Theft,

Associated Press, Oct. 6, 2019, https://apnews.com/afbf4d7f4aac4745b01852571179ceb3.

67 See 28 C.F.R. § 16.5(e)(1)(ii) (DOJ, FBI); 45 C.F.R. § 5.27(b)(2) (HHS); 45 C.F.R. §

612.5(e)(2)(i)(B) (NSF); 10 C.F.R. § 1004.5(d)(6) (Dep’t of Energy); 15 C.F.R. §§ 4.6(f)(1)(iv),

(f)(3) (Dep’t of Commerce).

18

§ 552(a)(4)(A)(iii).68 The ACLU and Advancing Justice | AAJC also request a waiver

of search fees on the grounds that the ACLU and Advancing Justice | AAJC qualify

as “representative[s] of the news media” and the records are not sought for

commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II).

A. The Request is likely to contribute significantly to public

understanding of the operations or activities of the government and is

not primarily in the commercial interest of the ACLU and Advancing

Justice | AAJC.

As discussed above, this Request concerns the government’s efforts to scrutinize,

investigate, prosecute, and take other measures against U.S.-based scientists and

researchers perceived to have ties to China or other nations. Relatively little

information is publicly available about this wide-ranging initiative. Consequently,

the records sought are certain to contribute significantly to the public’s

understanding of the government’s efforts—including their impact on members of

the scientific community, the risks of profiling based on race and ethnicity, and the

consequences for valuable innovation and scientific collaboration in the United

States.

The ACLU and Advancing Justice | AAJC are not filing this Request to further

their commercial interest. As described above, information disclosed by the ACLU

and Advancing Justice | AAJC as a result of this FOIA request will be available to

the public, including the press, free of charge. The ACLU and Advancing Justice |

AAJC intend to publish the records they receive on their websites and through

other means of communication. Thus, a fee waiver would fulfill Congress’s

legislative intent in amending FOIA’s fee waiver provision. See Judicial Watch, Inc.

v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to

ensure that it be liberally construed in favor of waivers for noncommercial

requesters.” (quotation marks omitted)).

B. The ACLU and Advancing Justice | AAJC are representatives of the

news media and the records are not sought for commercial use.

The ACLU and Advancing Justice | AAJC also request a waiver of search fees on

the grounds that the ACLU and Advancing Justice | AAJC qualify as

“representatives of the news media” and the records are not sought for commercial

use. 5 U.S.C. § 552(a)(4)(A)(ii)(II) .69 The ACLU and Advancing Justice | AAJC

68 See also 28 C.F.R. § 16.10(k)(2) (DOJ, FBI); 45 C.F.R. § 5.54(a) (HHS); 45 C.F.R. §

612.10(k)1) (NSF); 10 C.F.R. § 1004.9(a)(8) (Dep’t of Energy); 15 C.F.R. § 4.11(l)(1) (Dep’t of

Commerce).

69 See also 28 C.F.R. §§ 16.10(k)(2)(ii)–(iii) (DOJ, FBI); 45 C.F.R. § 5.54(b)(2)(ii) (HHS); 45

C.F.R. § 612.10(k)(2)(iii) (NSF); 10 C.F.R. § 1004.9(b)(3) (Dep’t of Energy); 15 C.F.R. §

4.11(l)(2)(iii) (Dep’t of Commerce).

19

meet the statutory and regulatory definitions of “representative[s] of the news

media” because they are “entit[ies] that gather[] information of potential interest to

a segment of the public, use[] [their] editorial skills to turn the raw materials into a

distinct work, and distribute[] that work to an audience.” 5 U.S.C.

§ 552(a)(4)(A)(ii)(III)70; see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381,

1387 (D.C. Cir. 1989) (finding that an organization that gathers information,

exercises editorial discretion in selecting and organizing documents, “devises indices

and finding aids,” and “distributes the resulting work to the public” is a

“representative of the news media” for purposes of the FOIA); Serv. Women’s Action

Network v. Dep’t of Def., 888 F. Supp. 2d 282 (D. Conn. 2012) (requesters, including

ACLU, were representatives of the news media and thus qualified for fee waivers

for FOIA requests to the Department of Defense and Department of Veterans

Affairs); ACLU of Wash. v. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at

*10 (W.D. Wash. Mar. 10, 2011) (finding that the ACLU of Washington is an entity

that “gathers information of potential interest to a segment of the public, uses its

editorial skills to turn the raw materials into a distinct work, and distributes that

work to an audience”); ACLU, 321 F. Supp. 2d at 30 n.5 (finding non-profit public

interest group to be “primarily engaged in disseminating information”). The ACLU

and Advancing Justice | AAJC regularly turn raw materials into press releases,

statements, blogs, reports, and other publications for distributions to the general

public at no charge. Requestors are therefore “representative[s] of the news media”

for the same reasons [they] [are] “primarily engaged in the dissemination of

information.”

Furthermore, courts have found other organizations whose mission, function,

publishing, and public education activities are similar in kind to those of the ACLU

and Advancing Justice | AAJC to be “representatives of the news media” as well.

See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.C. Cir. 2015); Elec. Privacy

Info. Ctr., 241 F. Supp. 2d at 10–15 (finding non-profit public interest group that

disseminated an electronic newsletter and published books was a “representative of

the news media” for purposes of the FOIA); Nat’l Sec. Archive, 880 F.2d at 1387;

Judicial Watch, Inc. v. Dep’t of Justice, 133 F. Supp. 2d 52, 53–54 (D.D.C. 2000)

(finding Judicial Watch, self-described as a “public interest law firm,” a news media

requester).71

On account of these factors, fees associated with responding to FOIA requests are

70 See also 28 C.F.R. § 16.10(b)(6) (DOJ, FBI); 45 C.F.R. § 5.3 (HHS); 45 C.F.R. §

612.10(b)(6) (NSF); 10 C.F.R. § 1004.2(m) (Dep’t of Energy); 15 C.F.R. § 4.11(b)(6) (Dep’t of

Commerce).

71 Courts have found these organizations to be “representatives of the news media” even

though they engage in litigation and lobbying activities beyond their dissemination of

information and public education activities. See, e.g., Elec. Privacy Info. Ctr., 241 F. Supp.

2d 5; Nat’l Sec. Archive, 880 F.2d at 1387; see also Leadership Conference on Civil Rights,

404 F. Supp. 2d at 260; Judicial Watch, Inc., 133 F. Supp. 2d at 53–54.

20

regularly waived for the ACLU as a “representative of the news media.”72

For the reasons above, the ACLU and Advancing Justice | AAJC meet the

requirements for a fee waiver here.

* * *

Pursuant to applicable statutes and regulations, the ACLU and Advancing Justice |

AAJC expect a determination regarding expedited processing within 10 days. See 5

U.S.C. § 552(a)(6)(E)(ii); 28 C.F.R. § 16.5(e)(4) (DOJ, FBI); 45 C.F.R. § 5.27(c)

(HHS); 45 C.F.R. § 612.5(e)(3) (NSF); 10 C.F.R. § 1004.5(d)(7) (Dep’t of Energy); 15

C.F.R. § 4.6(f)(4) (Dep’t of Commerce).

If the Request is denied in whole or in part, the ACLU and Advancing Justice |

AAJC ask that you justify all deletions by reference to specific exemptions to FOIA.

The ACLU and Advancing Justice | AAJC expect the release of all segregable

portions of otherwise exempt material. The ACLU and Advancing Justice | AAJC

reserve the right to appeal a decision to withhold any information or deny a waiver

of fees.

Thank you for your prompt attention to this matter. Please furnish the applicable

records to:

72 The ACLU regularly receives FOIA fee waivers from federal agencies. For example, in

June 2018, the U.S. Citizenship and Immigration Services granted a fee-waiver request

regarding a FOIA request for documents relating to the use of social media surveillance. In

August 2017, CBP granted a fee-waiver request regarding a FOIA request for records

relating to a muster sent by CBP in April 2017. In June 2017, the Department of Defense

granted a fee-waiver request regarding a FOIA request for records pertaining to the

authorities approved by President Trump in March 2017 which allowed U.S. involvement in

Somalia. In June 2017, the Department of Defense, the CIA, and the Office of Inspector

General granted fee-wavier requests regarding a FOIA request for records pertaining to

U.S. involvement in the torture of detainees in prisons in Yemen, Eritrea, and aboard

Yemeni or Emirati naval vessels. In May 2017, CBP granted a fee-waiver request regarding

a FOIA request for documents related to electronic device searches at the border. In April

2017, the CIA and the Department of State granted fee-waiver requests in relation to a

FOIA request for records related to the legal authority for the use of military force in Syria.

In March 2017, the Department of Defense Office of Inspector General, the CIA, and the

Department of State granted fee-waiver requests regarding a FOIA request for documents

related to the January 29, 2017 raid in al Ghayil, Yemen. In June 2016, the Office of the

Director of National Intelligence granted a fee-waiver request regarding a FOIA request

related to policies and communications with social media companies’ removal of “extremist”

content. In May 2016, the FBI granted a fee-waiver request regarding a FOIA request

issued to the Department of Justice for documents related to Countering Violent

Extremism Programs.

21

Charles Hogle

American Civil Liberties Union

125 Broad Street, 18th Floor

New York, New York 10004

T: 212.549.2500

F: 212.549.2654

[email protected]

[email protected]

I affirm that the information provided supporting the request for expedited

processing is true and correct to the best of my knowledge and belief. See 5 U.S.C.

§ 552(a)(6)(E)(vi).

Sincerely,

Charles Hogle

American Civil Liberties Union

Foundation

125 Broad Street, 18th Floor

New York, New York 10004

T: 212.549.2500

F: 212.549.2654

[email protected]

[email protected]

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